S -v- S (Application to Prevent Solicitor Acting)

A solicitor may be restrained from acting against a former or prospective client where confidential or privileged information was imparted in contemplation of a solicitor-client relationship and is relevant, or may be relevant, to the new matter. Once possession of such information and a real risk of disclosure are established, the burden lies on the solicitor to show that there is no real risk. The risk may arise through deliberate disclosure, inadvertence, or conscious or subconscious influence. The court normally grants an injunction, subject to countervailing public-policy considerations and the overall balance of injustice.

The husband applied to prevent the wife’s solicitor, Raymond Tooth of Sears Tooth, from acting in matrimonial proceedings. The husband’s representative had attended an appointment with Mr Tooth after consulting other firms, and the husband alleged that confidential and privileged financial information had been disclosed.

The wife disputed that any substantive confidential information had been imparted. The court heard evidence from the representative and Mr Tooth, considered the contemporaneous records, and determined whether a meeting occurred, whether relevant confidential or privileged information was communicated, whether there was a real risk of disclosure, and whether an injunction should be granted.

1. Applicable principles. The duties of confidentiality and legal professional privilege may arise where information is imparted by an agent on behalf of a principal and where the relationship is only contemplated. A preliminary meeting or beauty parade may therefore be sufficient. The principles apply equally in family proceedings, although there is no absolute rule preventing a solicitor from acting against a former client.
2. The solicitor should initially decide whether professional conduct rules and the proper administration of justice permit continued acting. If the solicitor decides to continue, the court retains power to restrain the solicitor by injunction.
3. The information must be confidential or privileged and relevant, or potentially relevant, to the later matter. Once the solicitor’s possession of such information is established, the court should intervene unless there is no real risk of disclosure. Real risk means more than fanciful or theoretical risk, but need not be substantial. It may arise from deliberate or inadvertent disclosure, or from conscious, unconscious, or subconscious influence.
4. In family litigation, detailed confidential financial or privileged information disclosed by one spouse to a solicitor will ordinarily create a real risk if that solicitor later acts for the other spouse. A party may decline to waive privilege or may waive it partially. Where partial waiver has occurred, the court may order fuller disclosure for the limited purpose of determining the injunction application and may protect the privilege for other purposes.
5. Even where the legal grounds are established, the court retains a discretion. An injunction will usually be granted unless stronger public-policy considerations make that unjust. Relevant considerations include whether the meeting was designed to conflict out solicitors, the availability of alternative representation, delay, additional expense, and the effect on the respondent.
6. On the facts, a meeting of some kind probably occurred, but the husband failed to prove on the balance of probabilities that confidential or privileged information had been imparted. The representative’s evidence was unreliable, the note was brief and ambiguous, and the surrounding circumstances suggested a short, largely theoretical meeting, partly intended to conflict out firms.
7. It was therefore unnecessary to decide the real-risk or discretionary issues. The application for an injunction restraining Mr Tooth and Sears Tooth from acting was dismissed.

First-instance decision. No appellate history is stated in the judgment.